United States of America v. Frederick L. Webster

February 15, 2012

UNITED STATES OF AMERICA, PLAINTIFF,v.FREDERICK L. WEBSTER, DEFENDANT.

The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

On April 22, 2011, Frederick L. Webster was sentenced to concurrent terms of 180 months in prison on Counts 1-4 of an indictment charging him with distribution of, and possession with the intent to distribute, cocaine base (Doc. 77). On December 15, 2011, this Court denied Webster's motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2) and the corresponding recent amendments to United States Sentencing Guidelines Manual ("U.S.S.G.") § 1B1.10 (Doc. 89). The Court simultaneously granted Webster's appointed counsel leave to withdraw (Doc. 89). On February 9, 2012, Webster, proceeding pro se, filed a second "Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2)" (Doc. 90).

As a preliminary matter, the Court must determine the procedural and jurisdictional posture of the motion. Technically, a motion to reconsider does not exist under the Federal Rules of Criminal Procedure; there is no counterpart to a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e), or a motion for relief from judgment/order under Federal Rule of Civil Procedure 60(b). United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010). Nevertheless, the Supreme Court has recognized that, as a matter of general practice, such motions should be permitted, as they are in civil suits. Id. at 501-503 (citing United States v. Healy, 376 U.S. 75 (1964); United States v. Dieter, 429 U.S. 6 (1976); and United States v. Ibarra, 502 U.S. 1 (1991). "[I]n a criminal case a timely petition for rehearing . . . filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the court disposes of the petition. . . . ." Healy, 376 U.S. at 77-78. Federal Rule of Appellate Procedure 4(b)(1)(A)(i) allots 14 days for an appeal to be filed, running from entry of the order being appealed. See also United States v. Redd, 630 F.3d 649, 650 (2011) (applying Rule 4(b) to a motion to reconsider the denial of a motion to reduce sentence pursuant to Section 3582(c)). Webster's motion was filed 56 days after his first Section 3582(c) motion was denied and is therefore ineffectual as a motion for reconsideration. Redd, 630 F.3d at 650.

Insofar as Webster's second motion for a reduction can be considered separate and distinct from his first motion, in Redd, the Seventh Circuit explained (relative to the 2008 retroactive amendment to Section 3582(c)) that neither Section 3582(c)(2) nor the language of the amendment suggests that a defendant is entitled to more than one opportunity to request a lower sentence for any given change in the Guideline range. "Once the district judge makes a decision, Rule 35*fn1 applies and curtails any further power of revision, unless the Commission again changes the Guidelines and makes that change, too, retroactive." Redd, 630 F.3d at 651. Furthermore, a successive Section 3582(c) motion cannot be used to obtain a fresh decision or to take what amounts to a fresh appeal of the original decision. Id.

IT IS THEREFORE ORDERED that, for the reasons stated, Defendant Webster's second "Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2)" (Doc. 90) is DENIED.

IT IS SO ORDERED.

MICHAEL J. REAGAN UNITED STATES ...

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